Murder Was Not a Crime

Homicide and Power in the Roman Republic

By Judy E. Gaughan

Publication Year: 2009

This pathfinding study looks at how homicide was treated in Roman law from the Roman monarchy through the dictatorship of Sulla (ca. 753–79 BC) to show how criminal law can reveal important aspects of the nature and evolution of political power.

Cover

Title Page, Copyright

Contents

Abbreviations

Preface

The impetus for this book lies in a
peculiar state of affairs I discovered some years ago in the process of researching
and writing my dissertation: the Romans seem to have had a
murder law during the monarchy but not during the republic....

Acknowledgments

I have had the remarkable good fortune
throughout my academic career to have consistently worked with
scholars who took their pleasure in the acquisition of knowledge and the
advancement of intelligence, not in the dance of one-upmanship. The
places where I found these remarkable people start with my undergraduate...

Introduction

During the Roman republic murder
was not a crime. In other words, the “killing of a human being by another
with malice aforethought” was not “an act done in violation of those
duties which an individual owes to the community and for the breach
of which the law has provided that the offender shall make satisfaction
to the public.”1 Indeed, the republican Romans had neither the capacity...

One. Killing and the King

According to Roman tradition, the
second king of Rome, Numa Pompilius, a man with a reputation for justice
and piety, promulgated a law that prohibited murder.1 One reason for
the promulgation of the law during the monarchy is that the monarchs
were trying to establish their own power in the face of what had preceded
them, and one means of doing so was to control the power to kill. The...

Two. Power of Life and Death: Pater and Res Publica

Through the course of the Roman
republic, power was diffused both within the institutions of government
and beyond them. In many ways, managing and providing stability for an
ever expanding and ever more complex...

Three. Killing and the Law, 509–450 B.C.E.

According to Roman tradition,
when the Romans ousted their kings and established annual magistracies,
the chief magistrates retained the political powers of the kings; among
these was the right of summary execution. These magistrates, in addition,
carried symbols of royal power in the...

Four. Murder Was Not a Crime, 449–81 B.C.E.

If murder was not a crime, what was?
Before the middle of the second century B.C.E., there were no crimes. This
does not mean that before the middle of the second century the Romans
experienced either total nihilistic anarchy or beatific peaceful relations,
only that the mechanisms for dealing with disputes, even violent disputes,
must almost always have been beyond the purview of the government....

Five. Capital Jurisdiction, 449–81 B.C.E.

The Romans are infamous in history
for their many ingenious methods of killing and for the abundance of the
killing that took place during their regime. Much of this killing, however,
was not a product of the republic. Indeed, what is so striking about the
republic in this regard is that, outside of war and the military, officials
and institutions of republican government seldom killed...

Six. License to Kill

In a book about the relationship between
homicide and political power, the killings of Roman tribunes and
their supporters, starting with the death of Tiberius Gracchus in 132, hold a
particularly profound place. In 133 B.C.E., Publius Cornelius Scipio Nasica
Serapio, nominally a private citizen but in fact a powerful man in Roman
government, led a band of senators into the tribal assembly and participated...

Seven. Centralization of Power and Sullan Ambiguity

In a book about homicide and its relationship
to political power, Lucius Cornelius Sulla takes center stage. As
consul in 88 B.C.E. he marched his troops against the city of Rome and then
created the hostis (“enemy of the state”) declaration, which made certain
citizens of Rome (and personal enemies of Sulla) into enemies of the res
publica and therefore subject to death. While proconsul and general fighting...

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